Court ends doubt on poll winner

By WILFRED AYAGA                                     

The Supreme Court has ruled that a person is considered elected into office after declaration of results by a returning officer at the county level, in a landmark decision that overturned interpretation by a lower court.  

Yesterday, the highest court in the land overturned an appellate decision that had effectively elevated a section of the electoral law above the Constitution.

A five-judge Bench of justices Kalpana Rawal, Philip Tunoi, Mohammed Ibrahim, Jackton Boma Ojwang and Njoki Ndung’u brought to a close the uncertainty that has characterised the interpretation of Section 76 of the electoral Act, which deals with the specific period a candidate shall be declared elected into office.

The court ruled that a decision made by the Court of Appeal in which it had argued that a person shall be declared elected upon gazettement of results of an election was repugnant to the provisions of Article 87 of the Constitution of Kenya.

“The Court of Appeal interpreted Article 87(2) of the Constitution so as to place it in conformity with the provisions of Section 76(1)(a) of the Elections Act. This is tantamount to elevating a statutory provision above that of the Constitution, and is not tenable,” it said.

The Supreme Court judgment arose out of an election petition that had been filed against Mombasa Governor Hassan Joho by his opponent, Suleiman Said Shabhal, during the last General Election.

During the hearing of the petition and the subsequent appeal, disputes arose over the timelines within which the petition should have been filed.

Under Article 87 (2) of the Constitution, such a petition should be filed within 28 days of declaration of results.

While Joho’s lawyers argued that the 28 days should begin from the time the results are declared at county level, his opponents held that counting should have begun at the time the results were gazetted.

The Supreme Court took issue with the appellate court decision saying it overlooked important constitutional considerations.